can draftsmen be sued?
joey
can he be sued if anything goes wrong down the way? If so, would
having a contract with some sort of disclaimer help?
Ie., if the customer were to sign a contract stating "All drawing are
provided as-is without warranty. John Doe assumes no responsibility or
liability whatsoever for any errors, omissions etc.", would that
protect vs. potential lawsuits?
If not, what would you suggest? I'm not sure if insurance is
available, but it seems like a prohibitive expense if the contract
drafting is a one-time thing.
I'm mostly interested in Canadian law, but I'm open to hearing from
anyone.
Cy Pres
wrote:
IANAL, this is not legal advice, plus if I'm wrong, you are an idiot
for relying on what some guy on the Internet said.
>I've got a question: if a draftsman does some drawings on contract,
>can he be sued if anything goes wrong down the way?
Yes, probably. The question isn't whether you can be sued but whether
it's likely, and whether you'll win or how likely you are to win, and
how much it will cost to win, or at least a rough guess as to the
statistical distribution of probable outcomes.
However, why are you asking? What kind of "drawings" are these?
(Don't answer if there's an actual legal situation already, such that
postings like this could be introduced into evidence, or such is
likely.)
>If so, would
>having a contract with some sort of disclaimer help?
Maybe.
>Ie., if the customer were to sign a contract stating "All drawing are
>provided as-is without warranty. John Doe assumes no responsibility or
>liability whatsoever for any errors, omissions etc.", would that
>protect vs. potential lawsuits?
If you infringed copyrights in making the drawings, you can't contract
away your own personal liability for doing this. (You can probably
contract away your share of vicarious and contributory liability on
the part of the employer/contractor if you were honest in contracting
as to potential IP issues.) If you were acting as an architect, and
the drawings are blueprints, and you were professionally negligent,
and the result is that a dangerous building was built, in which
someone was injured because of your negligent design, you could
probably be held liable, and would be unlikely to be able to contract
it away, short of an indemnity clause where the person paying you
agrees to pay for your defense and indemnify you for any damages.
>If not, what would you suggest? I'm not sure if insurance is
>available, but it seems like a prohibitive expense if the contract
>drafting is a one-time thing.
Insurance is probably the right way to go, from a practical
perspective, if you actually think liability is likely from just
drawing some drawings. I'm wondering what there is about these
drawings that you think liability is likely to result.
>I'm mostly interested in Canadian law, but I'm open to hearing from
>anyone.
I'm mostly talking about American law, but I'm also entirely IANAL, so
my skewed view from American cases, descending from English cases, a
shared background that split off a couple hundred years ago, is as
good as you'll get from me. You'd really have to be a fool to rely on
my view, and even more so if the situation you're beating around the
bush about actually exists and really involves a substantial risk of
litigation.
Rich Carreiro
> I've got a question: if a draftsman does some drawings on contract,
> can he be sued if anything goes wrong down the way? If so, would
> having a contract with some sort of disclaimer help?
>
> Ie., if the customer were to sign a contract stating "All drawing are
> provided as-is without warranty. John Doe assumes no responsibility or
> liability whatsoever for any errors, omissions etc.", would that
> protect vs. potential lawsuits?
Assuming the person is a licensed draftsman, does the licensing
statute and/or the trade association code of ethics even allow
such a disclaimer?
--
Rich Carreiro rlc-...@rlcarr.com
Mike
> If not, what would you suggest? I'm not sure if insurance is
> available, but it seems like a prohibitive expense if the contract
> drafting is a one-time thing.
I'm not a lawyer and don't even play one on TV but...........It seems to
me that you would have general liability insurance for the company that
would cover this and you wouldn't need to get insurance on a job-by-job
case.
Deadrat
2daf70...@g20g2000vba.googlegroups.com:
> I've got a question: if a draftsman does some drawings on contract,
> can he be sued if anything goes wrong down the way?
What are you afraid will go wrong?
> If so, would having a contract with some sort of disclaimer help?
Maybe.
> Ie., if the customer were to sign a contract stating "All drawing are
> provided as-is without warranty. John Doe assumes no responsibility or
> liability whatsoever for any errors, omissions etc.", would that
> protect vs. potential lawsuits?
In the US, you may lay off some liability in this manner, but you generally
cannot contract away negligence.
> If not, what would you suggest?
It would help to know what you're trying to protect against? The drawings
not representing the design? The eventual collpase of the building
constructed from the drawings?
Deadrat
2daf70...@g20g2000vba.googlegroups.com:
Sorry for the double post.
> I've got a question: if a draftsman does some drawings on contract,
> can he be sued if anything goes wrong down the way? If so, would
> having a contract with some sort of disclaimer help?
>
> Ie., if the customer were to sign a contract stating "All drawing are
> provided as-is without warranty. John Doe assumes no responsibility or
> liability whatsoever for any errors, omissions etc.", would that
> protect vs. potential lawsuits?
>
> If not, what would you suggest?
> I'm not sure if insurance is available,
It is. It's called E&O (errors and omissions).
<snip/>
Mike Jacobs
> I've got a question: if a draftsman does some drawings on contract,
> can he be sued if anything goes wrong down the way?
Sure. You mean, like, if he designs a bridge, and it turns out to be
too weak, and collapses, killing people? If that was the draftsman's
fault, of course he can be sued.
> If so, would
> having a contract with some sort of disclaimer help?
Many USA states limit the ability of a design professional to issue
disclaimers of liability in advance of injury. Besides, even if such
a contract were binding, it would only insulate the draftsman from
suit by his directly contracting client; it would NOT be effective as
against the claims of any third persons who were injured as a result
of the negligent drafting.
What helps, much better than disclaimers in such situations, is to
carry professional liability insurance.
> Ie., if the customer were to sign a contract stating "All drawing are
> provided as-is without warranty. John Doe assumes no responsibility or
> liability whatsoever for any errors, omissions etc.", would that
> protect vs. potential lawsuits?
And, how many customers do you think you would get, if all you are
promising them is shoddy, amateur workmanship and potentially lethal
mistakes over which they could not sue?
> If not, what would you suggest? I'm not sure if insurance is
> available, but it seems like a prohibitive expense if the contract
> drafting is a one-time thing.
If it's a one-time thing, ought you not leave this sort of thing to
the real professionals, who do it all the time and therefore know what
they are doing? Being a first-timer at _anything_ virtually
guarantees you are going to be clumsy in your attempts at getting it
right and, especially if you try to do it all alone and without any
supervision by a more experienced draftsman, you are likely to
overlook your own mistakes when reviewing your work, things that would
be obvious to your mentor.
> I'm mostly interested in Canadian law, but I'm open to hearing from
> anyone.
I don't know Canadian law. Just my $0.02 worth.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Roy
> ...
>
> Sure. You mean, like, if he designs a bridge, and it turns out to be
> too weak, and collapses, killing people? If that was the draftsman's
> fault, of course he can be sued.
>
It seems to me that a draftsman is simply a person who makes the
drawing. An engineer would be the one designing the bridge. The
engineer would be the be responsible that the drawing accurately
reflects his design.
Given that most engineering drawings are done by computer, there could
also be a case made that what was printed was not what was input or
shown on the screen.
no-can-do
> On Jun 4, 2:59 pm, joey <radian...@outgun.com> wrote:
>> I've got a question: if a draftsman does some drawings on contract,
>> can he be sued if anything goes wrong down the way?
>
> Sure. You mean, like, if he designs a bridge, and it turns out to be
> too weak, and collapses, killing people? If that was the draftsman's
> fault, of course he can be sued.
Generally speaking any structural drawings that result
in a structure built pursuant to a building permit must,
by law, be signed off by either a PE (licensed professional
engineer) or a licensed structural engineer.
That's the draftsman's protection.
This information is provided as a matter of general
public discussion and is not legal advice on what
to do or not to do.
Barry Gold
>On Jun 4, 2:59�pm, joey <radian...@outgun.com> wrote:
>> I've got a question: if a draftsman does some drawings on contract,
>> can he be sued if anything goes wrong down the way?
>
>Sure. You mean, like, if he designs a bridge, and it turns out to be
>too weak, and collapses, killing people? If that was the draftsman's
>fault, of course he can be sued.
There seems to be some confusion here. A draftsman simply makes
drawings according to a designer's specifications, and is _not_ a
professional in the way that a lawyer, physician, architect, or
engineer is.
However, since a draftsman would be making the drawings under the
supervision of the architect or engineer, the a/e should be checking
the drawings over and should also carry the necessary liability
insurance. Nonetheless, if a draftsman makes an error, I imagine he
can be sued just like anybody else who screws up -- and if the a/e
doesn't have adequate liability insurance, the draftsman might end up
having to pay the judgment.
--
Barry Gold, webmaster:
Alarums & Excursions, Xenofilkia: http://places.to/xeno
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
SteveBell
>professional in the way that a lawyer, physician, architect, or
>engineer is.
>
>However, since a draftsman would be making the drawings under the
>supervision of the architect or engineer, the a/e should be checking
>the drawings over and should also carry the necessary liability
>insurance. Nonetheless, if a draftsman makes an error, I imagine he
>can be sued just like anybody else who screws up -- and if the a/e
>doesn't have adequate liability insurance, the draftsman might end up
>having to pay the judgment.
This, like almost everything, depends on where you are.
My dad was a draftsman for more than 50 years, running his own one-man
company in Hobbs, New Mexico, a town of about 30,000 people. It seemed
like he designed half the custom homes in town, and a good chunk of the
commercial buildings. All by himself. His design for a local
convenience store was so good the company used it for all subsequent
stores.
I asked him once why he wasn't an architect. He said that he never took
the exam, and he didn't care, because New Mexico only required an
architect's stamp on drawings for buildings more than two stories tall
(or was that three stories?).
--
Steve Bell
New Life Home Improvement
Arlington, TX USA
Barry Gold
>>There seems to be some confusion here. A draftsman simply makes
>>drawings according to a designer's specifications, and is not a
>>professional in the way that a lawyer, physician, architect, or
>>engineer is.
SteveBell <res...@newsgroup.invalid> wrote:
>My dad was a draftsman for more than 50 years, running his own one-man
>company in Hobbs, New Mexico, a town of about 30,000 people. It seemed
>like he designed half the custom homes in town, and a good chunk of the
>commercial buildings. All by himself. His design for a local
>convenience store was so good the company used it for all subsequent
>stores.
>
>I asked him once why he wasn't an architect. He said that he never took
>the exam, and he didn't care, because New Mexico only required an
>architect's stamp on drawings for buildings more than two stories tall
>(or was that three stories?).
Then your father was acting as an (unlicensed) architect. If he
wasn't required to have a license, then he wasn't violating any laws.
But if he had screwed up and the building had fallen down, he would be
been liable for damages -- not just the cost of fixing it, but if
people had been injured or killed, he could have faced a multi-million
dollar judgment.
joey
> > having a contract with some sort of disclaimer help?
>
> Many USA states limit the ability of a design professional to issue
> disclaimers of liability in advance of injury. �Besides, even if such
> a contract were binding, it would only insulate the draftsman from
> suit by his directly contracting client; it would NOT be effective as
> against the claims of any third persons who were injured as a result
> of the negligent drafting.
I'm curious, why would there be liability from third parties? If I
sell a product to a customer, and they use the drawing to build
something for their customer, isn't my responsibility to them, and
theirs to the customer? I'm surprised I'd have a duty to the end user
in such a case. For example, if "Factory A" builds a car for GM, but
doesn't include brakes, and the contract specifically states that GM
is to install brakes at their end prior to sale, but fails to do so,
why would Factory A be liable? As far as they are concerned, they
fulfilled their contract, and their product *would* have been safe had
GM fulfilled their end of the agreement.
By the same token, if the drafting contract stipulates the customer
must check all the drawings prior to use, wouldn't all liability then
fall on the customer's shoulders?
> What helps, much better than disclaimers in such situations, is to
> carry professional liability insurance.
>
> > Ie., if the customer were to sign a contract stating "All drawing are
> > provided as-is without warranty. John Doe assumes no responsibility or
> > liability whatsoever for any errors, omissions etc.", would that
> > protect vs. potential lawsuits?
>
> And, how many customers do you think you would get, if all you are
> promising them is shoddy, amateur workmanship and potentially lethal
> mistakes over which they could not sue?
At the moment, I'm not concerned about getting customers. This is a
trial run. I'm not looking to start doing contract work full-time, but
I've been offered some, and I'm considering trying it out to see if
it's worth doing. If it turns out the downsides (ie., liability or
insurance costs) are too big, I'm fine with not doing it at all.
> > If not, what would you suggest? I'm not sure if insurance is
> > available, but it seems like a prohibitive expense if the contract
> > drafting is a one-time thing.
>
> If it's a one-time thing, ought you not leave this sort of thing to
> the real professionals, who do it all the time and therefore know what
> they are doing? �Being a first-timer at _anything_ virtually
> guarantees you are going to be clumsy in your attempts at getting it
> right and, especially if you try to do it all alone and without any
> supervision by a more experienced draftsman, you are likely to
> overlook your own mistakes when reviewing your work, things that would
> be obvious to your mentor.
There's has to be a first time for anything before one can become
experienced! FWIW, I am an experienced draftsman, I'm simply new to
the contract method of work.
The customer does employ a designer on staff, so they have someone who
can check the work. They are looking to use my services to catch up on
a backlog.
joey
> statute and/or the trade association code of ethics even allow
> such a disclaimer?
AFAIK, and as a draftsman by trade, I'm aware of no liscensing
available for draftsmen in my province. So far as I am aware, the
field is not licensed. Similar, I am aware of no mandatory
associations, though I'm sure there are lots of voluntary ones.
joey
> > can he be sued if anything goes wrong down the way?
>
> What are you afraid will go wrong?
I'm a draftsman by trade, but all my prior work experience has been as
an employee. This is my first time being offered contract work. I'm
not specifically expecting any problems, but it seems wise to cover my
bases prior to agreeing to accept any work, just in case. It's a small
job, and the money is in no way good enough to be worth exposing
myself to liability of any sort, or to justify buying insurance. On
the other hand, if no liability exists, then I might as well go for
it.
It's also a question for future jobs as well: if I accept, and this
contract goes well, I might start looking for further such work, and
as such would be wise to know what my risks and obligations are.
> > Ie., if the customer were to sign a contract stating "All drawing are
> > provided as-is without warranty. John Doe assumes no responsibility or
> > liability whatsoever for any errors, omissions etc.", would that
> > protect vs. potential lawsuits?
>
> In the US, you may lay off some liability in this manner, but you generally
> cannot contract away negligence.
What would be considered negligence?
What if I explicitly wrote into the contractor that the customer is
required to check all drawings prior to fabrication?
> > If not, what would you suggest?
>
> It would help to know what you're trying to protect against? �The drawings
> not representing the design? �The eventual collpase of the building
> constructed from the drawings?
Anything whatsoever. I've got no specific concerns, but if the job
pays no more than a regular employee wage, I see no reason to accept
any more liability than I would face as a regular employee.
Seth
Deadrat <a...@b.com> wrote:
>joey <radi...@outgun.com> wrote in news:d008a7a8-4bed-47a1-91d2-
>2daf70...@g20g2000vba.googlegroups.com:
>> Ie., if the customer were to sign a contract stating "All drawing are
>> provided as-is without warranty. John Doe assumes no responsibility or
>> liability whatsoever for any errors, omissions etc.", would that
>> protect vs. potential lawsuits?
>
>In the US, you may lay off some liability in this manner, but you generally
>cannot contract away negligence.
I thought you could contract away negligence, but not gross
negligence.
Seth
Mike Jacobs
and my earlier reply, without attribution]:
> > > If so, would
> > > having a contract with some sort of disclaimer help?
>
> > Many USA states limit the ability of a design professional to issue
> > disclaimers of liability in advance of injury. �Besides, even if such
> > a contract were binding, it would only insulate the draftsman from
> > suit by his directly contracting client; it would NOT be effective as
> > against the claims of any third persons who were injured as a result
> > of the negligent drafting.
>
> I'm curious, why would there be liability from third parties? If I
> sell a product to a customer, and they use the drawing to build
> something for their customer, isn't my responsibility to them, and
> theirs to the customer?
Your contractual duty is to the person you contracted with (putting
aside any "third party beneficiary" theories which may apply, and
might lead to the same result I predicted) but your tort duty is to
all persons within the foreseeable zone of danger resulting from
whatever your negligent act or omission was.
If you make a negligent mistake in your drafting, and someone gets
hurt as a result of using something designed to those inadequate
drawings, you could be found liable.
For the most part I was assuming you have some design role in this,
and are not merely acting as a transcriber of someone else's ideas
into blueprint form. However, even if you have no design role, you
still could be liable if you negligently prepare your drawings so they
do not match the specifications you were provided by the designer.
> I'm surprised I'd have a duty to the end user
Lack of contractual privity does not insulate you from tort liability
to the end user, especially for design issues, where it is clearly
foreseeable that the end user will be someone other than your direct
customer. Let's say, Firestone sells tires to Ford. The tires,
unfortunately, have a very bad tread/belt bonding design, so that
these tires frequently throw off their treads and explode, especially
when driven with heavy loads, in hot weather, on twisty roads (picture
a family summer vacation in the mountains). Ford mounts these tires
on an Explorer, and the tire blows up while Joe Customer and his
family are driving down the road, causing the vehicle to lose control,
roll over, and kill/injure Joe and his family. Can Joe et al. sue
Firestone, or is Firestone immune from a product liability suit by Joe
and only responsible to Ford for indemnification if Ford sues
Firestone after Joe successfully sues Ford? The answer is, both.
Joe can sue Ford _and_ Firestone, and Ford can also sue Firestone to
require Firestone to pay its proportional share of liability as found
by the jury. Real case? Heck yes - hundreds of real cases,
actually.
Now, in the auto design field, typically the designer (of the whole
car) is an employee, not a contractor, of the car's manufacturer, so
the draftsman per se is unlikely to get sued; the injured party will
simply sue his employer. However, in the construction field, it often
happens that an owner (say, a government entity, or a corporate owner
on a commercial project, or even a rich individual building a custom
home) will contract separately with an architect and an engineer to
design a structure, and to supervise its construction by a builder, to
ensure its compliance with the plans. In that case, the builder is
liable if the builder makes a mistake and doesn't follow the plans,
and the design professional is liable if he either made a mistake in
the plans, or fails to catch the builder's mistake that varied from
the plans when the structure got built, if the mistake results in
injury-causing damage.
There are infinite variations. And, you apparently live in Canada,
which is a bit less liberal about tort liability perhaps than USA -
but the illustrations above were simply intended to support the
general statement that you _are_ exposed to potential liability from
_all_ persons who might foreseeably use the plans you draw, or the
products built from them.
> in such a case. For example, if "Factory A" builds a car for GM, but
> doesn't include brakes, and the contract specifically states that GM
> is to install brakes at their end prior to sale, but fails to do so,
> why would Factory A be liable?
They wouldn't, if what Factory A provided was therefore a mere
"component" of the finished car, even if that component is the entire
body shell (minus brakes and other safety-required components) unless
there was something wrong, standing alone, with the component they
furnished to GM.
But we were not talking about situations where a component supplier,
or some other subcontractor such as yourself, would NOT be liable, nor
were we talking about all the reasons you would probably not be held
liable for someone ELSE's torts. The point I was trying to make is,
YOU are ALWAYS liable for your OWN torts; if _you_ are the one who
makes a negligent mistake, and someone in your zone of danger (a
foreseeable ultimate user) gets hurt in a generally foreseeable way as
a result, then YOU can be held liable. That liability is not a slam
dunk sure thing, of course; you may also win. But the term of art we
use to describe this situation is to say that you have liability
"exposure," meaning there is a measurable POSSIBILITY that you will be
held liable for a negligent act or omission of yours.
> As far as they are concerned, they
> fulfilled their contract, and their product *would* have been safe had
> GM fulfilled their end of the agreement.
If that's the case, then they don't have any significant liability
exposure for this particular incident. But, as an ongoing matter, the
component supplier DOES have measurable "liability exposure" for the
components it furnishes in large numbers to GM; if one of those
components has a defect, and that defect results in injury, BOTH GM
and the component supplier could be held liable for the victim's
damages.
> By the same token, if the drafting contract stipulates the customer
> must check all the drawings prior to use, wouldn't all liability then
> fall on the customer's shoulders?
No. That would mean you BOTH could be held liable, IF there is in
fact a mistake in your drawings that was YOUR fault. OTOH if you
drew your drawings exactly the way your customer asked you to, your
liability exposure is probably minimal; but how will you know if you
were accurate, job after job after job? Everybody makes mistakes
sometimes, and you do have liability exposure for the mistakes you may
someday make. You cannot rely on a "customer must check drawings
before use" clause in your contract to completely eliminate any
possibility of such exposure to THIRD PARTIES within your zone of
danger who get injured by your negligence.
> > What helps, much better than disclaimers in such situations, is to
> > carry professional liability insurance.
I notice you did not reply further to this part of my reply. Let me
repeat that getting insurance is the best thing you can do to protect
yourself, if you ever really do screw up (of course, you have to line
up the insurance BEFORE you screw up).
> > > Ie., if the customer were to sign a contract stating "All drawing are
> > > provided as-is without warranty. John Doe assumes no responsibility or
> > > liability whatsoever for any errors, omissions etc.", would that
> > > protect vs. potential lawsuits?
You snipped, without noting a snip, the portion of my reply that said
even if such disclaimers were given legal effect, they would have no
effect on your liability to a third party, someone who was a complete
stranger to your contract and thus had not contracted away any of his
tort rights for your negligence.
> > And, how many customers do you think you would get, if all you are
> > promising them is shoddy, amateur workmanship and potentially lethal
> > mistakes over which they could not sue?
>
> At the moment, I'm not concerned about getting customers. This is a
> trial run.
By which I presume you mean you already have your first customer lined
up, and if the process works out to your satisfaction, you may go out
looking for another. Still, even that first customer may balk and
withdraw his intention to hire you if you try to stuff too many one-
sided onerous (to him) and exculpatory (to you) clauses into your
contract.
> I'm not looking to start doing contract work full-time, but
> I've been offered some, and I'm considering trying it out to see if
> it's worth doing. If it turns out the downsides (ie., liability or
> insurance costs) are too big, I'm fine with not doing it at all.
Have you even checked into availability of insurance yet, and the
cost?
Another option is to require your customers to insure YOU as part of
their contractual obligation. That is probably less onerous than it
sounds, and certainly less onerous than requiring the customer to
assume all liability. If you are drafting for a design professional
who has provided you with the specs and you are just translating those
specs into blueprints, the architect or engineer you are working for
probably has insurance already that would cover you, at least if they
tell their insurance agent to add you as a named insured (and maybe
even if he doesn't, but you're safer off if you ask in advance of
anybody getting hurt from your drawings).
> > > If not, what would you suggest? I'm not sure if insurance is
> > > available, but it seems like a prohibitive expense if the contract
> > > drafting is a one-time thing.
>
> > If it's a one-time thing, ought you not leave this sort of thing to
> > the real professionals, who do it all the time and therefore know what
> > they are doing? �Being a first-timer at _anything_ virtually
> > guarantees you are going to be clumsy in your attempts at getting it
> > right and, especially if you try to do it all alone and without any
> > supervision by a more experienced draftsman, you are likely to
> > overlook your own mistakes when reviewing your work, things that would
> > be obvious to your mentor.
>
> There's has to be a first time for anything before one can become
> experienced!
But you didn't say, above, this was yor FIRST time, you said it was a
ONE-time deal, not something you hoped to continue doing. If it _is_
something you want to branch out into doing, and can amortize the cost
of insurance over a large number of jobs, then that's a different ball
of wax. It also does help, if you are new at this, to have a mentor
as I mentioned - but you also indicate, below, you are NOT new at
this, you are an experienced draftsman. That's not what I was
talking about; I was talking about the unwisdom of taking on a one-off
project that is unlike anything you've ever done before and are
unlikely to ever do again so that the "learning curve" you will
inevitably go thru to get up to speed _and_ to do a decent job will be
focused only on the one prototype project and not amortized over many
other units - unless your customer knows that is what he is getting,
and is willing to pay you to learn. Of course you know that's why
NASA has $6000 toilet seats and such - they need a whole staff of
engineers to design just a small handful of them for the space shuttle
fleet. If we had commercial space flight, with thousands of
suborbital airliners in operation, they would probably use those same
toilet seats, and they would cost a lot less per unit (putting aside
the fact that the government already paid for the design work).
> FWIW, I am an experienced draftsman, I'm simply new to
> the contract method of work.
Okay, then. Go for it. But don't expect to be insulated from
potential liability. Getting insurance, or getting your customers to
provide you insurance, is a must IMO.
> The customer does employ a designer on staff, so they have someone who
> can check the work. They are looking to use my services to catch up on
> a backlog.
Fine. But make sure your contract specifies that they must provide
you with coverage through their Errors & Omissions policy. You can
also include a clause that requires the customer to check your work
and which states that the customer must indemnify you for any mistakes
you make that they would have found on a reasonable inspection of your
work before building from it. Otherwise IMO they are taking advantage
of your contract status to potentially screw you and leave you holding
the bag if anything goes wrong. That WILL NOT insulate you from third
party suits, but it will make the customer carry the ball for you if
something bad happens.
Deadrat
c62c52...@r3g2000vbp.googlegroups.com:
>> > If so, would
>> > having a contract with some sort of disclaimer help?
>>
>> Many USA states limit the ability of a design professional to issue
>> disclaimers of liability in advance of injury. �Besides, even if such
>> a contract were binding, it would only insulate the draftsman from
>> suit by his directly contracting client; it would NOT be effective as
>> against the claims of any third persons who were injured as a result
>> of the negligent drafting.
>
> I'm curious, why would there be liability from third parties? If I
> sell a product to a customer, and they use the drawing to build
> something for their customer, isn't my responsibility to them, and
> theirs to the customer? I'm surprised I'd have a duty to the end user
> in such a case. For example, if "Factory A" builds a car for GM, but
> doesn't include brakes, and the contract specifically states that GM
> is to install brakes at their end prior to sale, but fails to do so,
> why would Factory A be liable? As far as they are concerned, they
> fulfilled their contract, and their product *would* have been safe had
> GM fulfilled their end of the agreement.
You have a duty to perform your job with reasonable prudence so as to avoid
harming anyone.
> By the same token, if the drafting contract stipulates the customer
> must check all the drawings prior to use, wouldn't all liability then
> fall on the customer's shoulders?
It would depend on whether a reasonable person would have found the problem
upon checking the drawings.
<snip/>
>From one of your subsequent posts, you mention you live in a province.
Since I live in a state, that means that not only am I not a lawyer, I'm
not a lawyer where you live.
Check with one of those.
Barry Gold
>>> Ie., if the customer were to sign a contract stating "All drawing are
>>> provided as-is without warranty. John Doe assumes no responsibility or
>>> liability whatsoever for any errors, omissions etc.", would that
>>> protect vs. potential lawsuits?
>Deadrat <a...@b.com> wrote:
>>In the US, you may lay off some liability in this manner, but you generally
>>cannot contract away negligence.
Seth <se...@panix.com> wrote:
>I thought you could contract away negligence, but not gross
>negligence.
That was my understand, too. However, you can generally only contract
away your negligence responsibility with other parties to the contract
(those you are in "privity" with). Third parties cannot have their
rights affected because they are not part of the contract.
For example, you design a building for the XYZ corp. and the contract
specifies you provide the plans "as is" with no liability if the
building falls down. Later on, the building is sold to ABC, LLC. A
year later, it _does_ in fact fall down, and two people are killed and
35 injured.
You *might* be OK wrt to ABC, LLC, because they bought the building
from XYZ and obtained no new rights. But the people who were injured
and estates of those who were killed can still sue you.
Cy Pres
wrote:
>I'm curious, why would there be liability from third parties? If I
>sell a product to a customer, and they use the drawing to build
>something for their customer, isn't my responsibility to them, and
>theirs to the customer? I'm surprised I'd have a duty to the end user
>in such a case.
You have a duty of care to anyone who is foreseeably in the path of
destruction which could result from your negligence. If your
negligent or reckless or even malicious design of a building could
foreseeably cause harm to individuals using that building, you are on
the hook for damages if the plaintiff can show that it was *your*
negligent design which proximately caused their injury, and that you
did have a duty of care to them, which you breached.
Obviously, you wouldn't be liable if the injury was entirely caused by
the negligence of someone else further along the line, or for harm to
plaintiffs it is completely to expect you to foresee.
In the favor of the innocent draftsman is that it might be quite
difficult to prove proximate cause against him or her. On the other
side of the coin, though, there is generally a policy to sue everyone
and let God (or more likely a judge) sort it out.
mm
wrote:
>
>
>For example, you design a building for the XYZ corp. and the contract
>specifies you provide the plans "as is" with no liability if the
>building falls down. Later on, the building is sold to ABC, LLC.
For that matter, even if it's not sold to anyone, when it "falls down"
XYZ won't be able to sue, but people injured and killed will still be
able to.
What about when those injured include the President of XYX, the person
who was President when the drafsman was hired and paid, and the entire
board of directors, etc.? What if the current and former pres is the
same person and he is the sole stockholder? And totally responsible
for the contract with the draftsman that XYX signed?
And XYZ had contracted away their right for regular negligence, and
that's what this was, not gross negligence.
Is he barred from recovering because the corporation he owns signed
away its right. That seems sort of fair.
OTOH, it doesn't seem like it's the law and if not, the draftman
should realize all the client can sign away is for damage to the
property the client owns, but ANYONE who gets hurt can still sue him!!
So which is it?
mm
wrote:
> For example, if "Factory A" builds a car for GM, but
>doesn't include brakes, and the contract specifically states that GM
>is to install brakes at their end prior to sale, but fails to do so,
>why would Factory A be liable?
I don't know but it doesn't matter because that's not your situation.
In the situation you describe right here A makes a car with no brakes
and GM *knows* the car has no brakes and *knows* it's GM's
resonsibilty to provide the brakes and provide safe ones.
Your actual situation, described in the original post, is more like
you/Factory A make part of the car for GM *including* the brakes, and
GM has reason to think your brakes are good brakes, so they don't
replace them, they leave them in the car, and they add the radio and
convertible top and sell the car to someone, who is injured when the
brakes fail.
If factory A said to GM, we're going to make part of the car for you
but you can't rely on the brakes we will make, you'll have to take out
the brakes and put in different brakes, GM would say, Well, then we
don't want your brakes, and we're not paying you for brakes and we'll
get the brakes somewhere else, and maybe we'll get everything made
somewhere else. But instead A explicitly or implicitly warrants the
brakes are up to industry standards, and GM relies on that and
includes them in the car they sell. So both you and GM will be
liable to the car owner or passenger if the brakes fail when good
brakes wouldn't have.